Sharing Digital Images and How it Can Come Back to Bite You

What happens when you share an intimate picture of your ex-partner and it ends up going viral for the world to see? Depending on whether or not you had permission to share it, you could end up facing serious consequences. Sharing digital images that were believed to be private and are intimate is a serious crime. Non-consensually sharing an intimate photo can lead to criminal charges requiring legal representation. Here are just a few things to consider before deciding whether or not to forward on that provocative photo you received.

Viral Viewership & Damaging Someone’s Reputation

The internet allows us to access information, video, and pictures from all over the world. YouTube, Facebook, Twitter, and text messaging are sources in which photos can be easily shared among friends, family and even with the public. Pictures can spread quickly and uncontrollably, going from a few people to worldwide viewership in a matter of hours. What you may think is an innocent act of passing along a photo, can quickly turn into catastrophe – damaging someone’s reputation, impacting their career, and potentially landing you in jail or saddling you with a criminal record.

Child Pornography Charges

If the intimate image depicts a person under the age of 18, and they are engaged in explicit sexual activity or images of their private areas, then that picture or video will be considered child pornography, as defined under section 163.1(1) of the Criminal Code of Canada. This could lead to being charged with a number of offences, such as making distribution, and possession of child pornography. If convicted of such an offence, in addition to potentially facing a lengthy prison sentence (and a mandatory minimum sentence to jail), a person would be registered as a sex offender.

Distributing Without Consent

In March of 2015, a new offence was created under section 162.1(1) of the Criminal Code, which criminalizes Publication, etc., of an intimate image without consent. Amendments to the Criminal Code under Bill C-13, known as the “Protecting Canadians from Online Crime Act” created this new offence. Bill C-13 was intended to change how cyberbullying could be fought in court. This offence is a hybrid offence, meaning the Crown can proceed by way of indictment or summarily. If someone is found to knowingly publish, distribute, transmit, sell, make available, or advertise an intimate image of a person knowing that the person depicted in the image did not give their consent to that conduct, or being reckless as to whether or not that person gave their consent, the person is guilty of an indictable offence and liable to a term not exceeding five years in prison, or of a summary offence and liable to a term not exceeding 6 months in prison or a $5000 fine or both.

An intimate image is further defined in section 162.1(2), and includes a photograph, film or video recording, in which the person is nude, exposing his or her genital organs or anal regions, breasts, or is engaged in explicit sexual activity. So, an image or video of this nature, which was made in circumstances that gave rise to a reasonable expectation of privacy, where the person depicted still has a reasonable expectation of privacy at the time the offence is committed, that is transmitted or shared in one of the above noted manners without consent will lead to the commission of an offence under this section of the Criminal Code.

Banned from the Internet

A further change to the Criminal Code under Bill C-13 was in relation to section 162.2. Under this section, an offender found guilty of an offence under section 162.1(1), may be prohibited from using the internet or other digital network. This condition may be made in addition to any other punishment. In a time when internet use is ubiquitous and such an important part of daily living, this could have far-reaching effects on a person’s life.

Bullying

Cyberbullying can be prosecuted through a variety of offences contained in the Criminal Code. These include criminal harassment, uttering threats, mischief in relation to data, unauthorised use of a computer, and extortion. Criminal harassment charges, for example, can apply in some non-consensual distribution of intimate image cases if the victim can prove that they feared for their safety. Acts such as threatening to share someone’s personal information, threats of non-consensual force, creating a fake online profile to ruin someone’s reputation, and spreading rumours about someone, can all result in criminal charges.

Before you click ‘send’ and decide to share digital images of an inappropriate nature, think twice about the potential consequences. Or better yet- just don’t hit ‘send’. If you have found yourself under investigation or charged, contact us at Weisberg Law. We can help you with your case and get you the best defense you need for a fair trial.